![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
Scottish Sheriff Court Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> HILARY SMITH-MILNE v. JOHN LEWIS LANGLER [2013] ScotSC 18 (12 March 2013) URL: https://www.bailii.org/scot/cases/ScotSC/2013/18.html Cite as: 2013 GWD 13-284, 2013 Fam LR 58, [2013] ScotSC 18 |
[New search]
[Context]
[Printable version]
[Help]
SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT ABERDEEN
F140/12
by
SHERIFF PRINCIPAL DEREK C W PYLE
in causa
HILARY SMITH-MILNE,
residing at
2 Nigg Way, Aberdeen
Respondent
against
JOHN LEWIS LANGLER,
residing at
8 Nigg Way, Aberdeen
Appellant
Aberdeen, 12 March 2013
The Sheriff Principal, having resumed consideration of the cause, Allows the appeal in respect of the joint motion of the parties to exclude from probation the averments contained in article 3 of condescendence and answer 3 and so Excludes said averments; quoad ultra Refuses the appeal; Finds the appellant liable in the expenses of the appeal and Remits an account thereof to the auditor of court to tax and to report; Certifies the appeal as suitable for the employment of junior counsel.
Introduction
This appeal follows the decision of the sheriff to repel the appellant's preliminary plea-in-law after a debate in which the appellant sought to exclude from probation certain of the respondent's averments. The appeal concerns the construction of the Family Law (Scotland) Act 2006 in respect of the rights of cohabitants.
In 1995 the parties met and began to live together as if they were husband and wife. The relationship lasted until 2011. For that period they were "cohabitants" within the meaning of Section 25 of the Act. The respondent now seeks a capital sum in terms of Section 28(2)(a) of the Act.
The Pleadings
In article 4 of condescendence,
the respondent makes certain averments about the period of the cohabitation. I
do not find it necessary to repeat them here ad longum. Suffice it to
say, the respondent avers that the appellant had little by way of capital when
the parties first met. He did however have his interest in a business which he
was running at that time. The respondent makes detailed averments about the
various
contributions, both financial and otherwise, she made to the
relationship between the parties. In particular, she avers that (a) on the
parties jointly purchasing a home, she paid for its decoration and supplied or
paid for the furniture and some other contents, as well as half of the monthly
mortgage instalments; (b) she kept the parties' home and garden and cooked,
washed, cleaned and shopped for the appellant, as well as carrying out DIY and
maintenance of the property; (c) she looked after her son who was assumed by
the appellant as a child of the relationship and alone paid for childcare; (d)
she paid for the entire cost of food and most of the utilities; and (e) she
sold her own house and applied the net proceeds to supporting the parties'
family life. The respondent then goes on to aver that when the parties
commenced cohabitation she was employed as a chartered quality professional and
for three years from 1996 she was employed as a stakeholder manager in an oil
company. In 1999, she was persuaded by the appellant to work for his company.
In doing so, she took a drop in salary. She avers that her contribution to the
appellant's business greatly enhanced its
value
and that her efforts greatly
exceeded the level of her salary. The appellant eventually sold the business
for £6 million. The respondent was made redundant and received £10,000 as
compensation. Thereafter she continued to pay half of the mortgage and met the
whole cost of food and utilities, with the result that she soon exhausted her
compensation and also incurred credit card debts, this being despite the
appellant now being a multi-millionaire. The respondent also avers that she
advanced the appellant's career by attending functions with him in his role as
Deputy Lord Lieutenant of Aberdeen, by attending social events as his partner
and by
visiting
Kazakhstan to support him in his role as honorary consul.
Moreover, she
visited
there on one occasion on her own to develop a proposed
vocational
training model for industry. Finally, she avers that the appellant
is a diabetic and she had to nurse him from time to time.
In article 5 of condescendence the respondent avers that by reason of the above contributions the appellant was able to concentrate on developing his career and business interests and has substantially increased his wealth and earning capacity over the cohabitation period. She then goes on to aver in detail the respondent's assets as at the date of cessation of the relationship. She estimates that his personal wealth is in excess of £11 million. She seeks payment of a capital sum of £600,000.
Finally, the respondent avers in article 7 of condescendence that in the foregoing circumstances the appellant has derived economic advantage from her contributions and that she, in turn, has suffered economic disadvantage in the interests of the appellant.
Section 28 - Discussion
Section 28 of the Family Law (Scotland) Act 2006 provides:
"(1) Subsection (2) applies where cohabitants cease to cohabit otherwise than by reason of
the death of one (or both) of them.
(2) On the application of a cohabitant (the "applicant"), the appropriate court may, after
having regard to the matters mentioned in subsection (3)-
(a) make an order requiring the other cohabitant (the "defender") to pay a capital sum
of an amount specified in the order to the applicant...
(3) Those matters are-
(a) whether (and, if so, to what extent) the defender has derived economic advantage
from contributions made by the applicant; and
(b) whether (and, if so, to what extent) the applicant has suffered economic
disadvantage in the interests of-
(i) the defender...
(4) In considering whether to make an order under subsection (2)(a), the appropriate court
shall have regard to the matters mentioned in subsections (5) and (6).
(5) The first matter is the extent to which any economic advantage derived by the defender from contributions made by the applicant is offset by any economic disadvantage
suffered by the defender in the interests of-
(a) the applicant...
(6) The second matter is the extent to which any economic disadvantage suffered by the
applicant in the interests of-
(a) the defender...
is offset by any economic advantage the applicant has derived from contributions made by the defender...
(9) In this section-
"contributions" includes indirect and non-financial contributions (and, in
particular, any such contribution made by looking after... any
house in which they cohabited); and
"economic advantage" includes gains in-
(a) capital;
(b) income; and
(c) earning capacity;
and "economic disadvantage" shall be construed accordingly..."
This provision has been the subject of scrutiny by
the Supreme Court in Gow v
Grant 2012 SLT 829 and indeed more recently
by Lord Drummond Young in Whigham
v
Owen [
2013]
CSOH 29. (Counsel had
advised me that Lord Drummond Young's opinion was
very
imminent. Its
publication occurred after I had made avisandum. I invited parties to address
me further if they so wished in the light of the decision. Both declined to do
so.)
Before considering the approach taken by the Supreme Court, I observe at this point that the right to a capital sum on cessation of cohabitation is triggered only when either the defender has derived economic advantage from contributions made by the applicant or when the applicant has suffered economic disadvantage in the interests of the defender (Sec 28(3)). In an economic advantage case, therefore, the normal sequence will be, first, proof of economic advantage and, secondly, proof that it has arisen from the applicant's contributions. Counsel for the appellant referred to this as a causal link. That is of course a well known concept in our law of delict. Whether or not it accurately explains the word, "from", in this context, what is certainly true is the mere fact that a couple are in a loving relationship for a period of time during which they help each other as normal couples do and at the end one party is considerably better off than he/she was at the start is not on its own sufficient to warrant a capital sum being awarded to the other.
In the instant case, the respondent avers both
economic advantage and disadvantage. But Gow v
Grant is on the facts
only an economic disadvantage case. The Supreme Court endorsed the approach taken
by the sheriff at first instance. That was because the evidence was available
to prove that the disadvantage was in the interest of the defender. The sheriff
also had to consider sub-sec 28(6), namely the extent to which the proved
disadvantage was offset by any economic advantage derived from the
contributions made by the defender, but in the event decided that there was
none. Nevertheless, that did mean that the Supreme Court was engaged in
considering both economic advantage and economic disadvantage - and of course
the same wording is employed for the type of economic advantage which qualifies
to be offset per sub-sec 28(6) as is employed in the entitlement arising under
sub-sec 28(3)(a).
In discussing the background to the 2006 Act and in particular regard to the discretion which Section 28 gives to the court whether to make an award at all (sub-sec 28(2)), Lord Hope of Craighead concluded (at para [31]) that the principle of fairness lies at the heart of the award that the court is able to make, that is fairness between both parties to the relationship. He then went on to deal with the detailed approach of the sheriff on the facts. He added this (at para [39]):
" But... it would be an unusual relationship if parties, from the commencement, proceeded to keep full and detailed accounts of their respective finances so that upon termination a mathematical calculation might be made of any contributions made, economic advantage derived [my italics] or disadvantage suffered."
That is, in my opinion, a clear indication that in
a case of economic advantage to the defender, which on the facts Gow v
Grant
was not, the Supreme Court is contemplating that a broad approach, based on the
underlying principle of fairness, should also be adopted.
As Lord Drummond Young relates in Whigham v
Owen, Section 28 has caused some consternation for sheriffs in deciding what
awards should be made. Perhaps more critically given that only a small
percentage of disputes require a judicial decision, it has also caused
difficulties for family law practitioners in advising their clients what awards
the court is likely to make. It seems to me that such uncertainty remains,
although the Supreme Court appears to regard that as a necessary consequence of
a broad brush approach which is required to give effect to the provisions of
Section 28 in the context of relationships where mathematical calculation will
not be made during its course. It may of course be that over time there will be
enough decisions of the higher courts upon which sheriffs and practitioners can
draw so that much of the uncertainty will be dissipated. Nevertheless, I am left
with some unease that too much reliance on the broad approach of fairness runs
the risk of doing
violence
to the terms of sub-sec 28(3)(a) which, as I have
already said, seems to envisage an exercise of proving the advantage to the
defender and then proving the causal connection between the advantage and the
contributions of the applicant. For aught yet seen, experience over time may
show that it is easier to prove economic disadvantage than economic advantage
if the courts decide that the fairness principle does not mean that the causal
connection required for economic advantage can simply be subsumed into that
principle.
Appellant's Plea to the Relevancy
Before the sheriff, the appellant submitted that
virtually
all of the averments in article 5 of condescendence should not be
admitted to probation. These were the averments which described in detail the
appellant's resources as at the date of cessation of the relationship. The
sheriff rejected this argument on the basis that it required a narrow and
technical approach to the legislation, which had not been accepted in Gow
v
Grant. The sheriff thought that the averments simply sought to give as much
information as possible about the appellant's financial position at the end of
the period of cohabitation.
It is, in my view,
significant that counsel for
the appellant before me and before the sheriff did not seek to exclude the
first sentence of article 5: "By reason of the pursuer's contributions the
defender was able to concentrate on developing his career and business
interests." While he argued the need for a causal connection between the
economic advantage to the appellant and the respondent's contributions (and
indeed at one point in his submissions a causal connection between the
contributions and particular assets), he did not move to exclude from probation
the averments in article 4 which set out those contributions. In other words,
he was accepting that a proof was required on these averments, which must
inevitably mean that his true complaint can only be that the appellant's
resources at the end of the cohabitation are irrelevant in assessing what, if
any, capital sum should be awarded. Like the sheriff, I do not understand why
such averments are not to the point. It seems to me that evidence of the
appellant's financial position at the date of cessation of the relationship
would be an essential starting point to enable the court to decide what, if
any, capital sum should be awarded. That was the approach Lord Drummond Young
took in Whigham
v
Owen (para [26] et seq). It is also consistent with
the point made by Lady Hale in Gow
v Grant (para [54]) where she
referred to the comparison to be done between where the parties were at the
beginning of their cohabitation and where they are at the end, an approach
expressly approved by Lord Hope (para[40]).
Decision
Whatever reservations I have expressed about the correct manner in which Section 28 should be construed in cases of economic advantage, I am entirely satisfied that the sheriff was correct to repel the appellant's preliminary plea. Accordingly, the appeal must fail.
Parties were agreed that I should allow the appeal for the restricted purpose of excluding from probation the averments in article 3 and the answer thereto. This had been so moved before the sheriff but he had failed to include it in his interlocutor.